Friday, January 31, 2014

Friday Review: Not a lot going on


 It's been a strangely quiet week, especially as far as reported cases go. There have been a couple of 'forum shopping' cases, in particular Jefferson v O'Connor, but not a lot else. Perhaps everyone is waiting for the President's transparency guidance to kick off next week, when just about every judgment will have to be published. Or something like that.

There have, however, been a few family law news items. For example, Resolution has said there is "no justification" for government plans to increase the court fee for a divorce from £410 to £750 (a statement of the bleeding obvious, given that the MoJ has admitted that the current fee is already "above cost price"), a report by the Tavistock Institute for the Department for Education has said that marriage guidance could save the country 'billions' by reducing family break-ups and, my favourite story, a millionaire could not understand why his ex-wife became "so aggressive" when he asked her to stay on in the marital home as a housekeeper for him and his new partner.

"For about the past four years now I have been indulging in that respected pass time [sic] of Arguing With People who are Wrong on the Internet." Says guest poster Sarah Phillimore on Pink Tape. Arguing with idiots on the internet, especially those from the 'corrupt family courts brigade' is, of course, an utterly futile 'pass time', hence I gave up doing it long ago. However, Sarah has learnt one thing from it, albeit an obvious thing: there is a need for information for families involved in the child protection system. Accordingly, says Phillimore, "we decided to create this resource", cunningly entitled the Child Protection Resource. I've had a look around the site and it's not clear who 'we' are (perhaps it's the Royal 'We'), but no doubt the site will be of great use.

Thursday, January 30, 2014

Says it all...

Tuesday, January 28, 2014

Tuesday Review: A couple more things...


Just a couple of things to report on a quiet start to the family law week:

The tenth annual Grant Thornton survey of UK family lawyers was published yesterday. I'm not entirely convinced of the value of a survey that canvasses the opinions of just 85 of the UK’s "leading family lawyers", whatever that means. I don't know how many family lawyers there are in the UK, but Resolution, which only covers England and Wales, has 6,500 members alone, so 85 is an extremely small selection, probably less than 1% of the total. Anyhow, if you would like to know what the elite 85 have to say about the current trends in family law, you can read the survey, here.

Meanwhile, Family Law Week reports that last Friday Japan signed and ratified the 1980 Hague Child Abduction Convention, which will enter into force for Japan on the 1st of April. Obviously, this is to be welcomed. However, there are many who fear that little will change unless Japan's domestic laws are addressed, as mentioned in this post on International Family Law. Certainly, it appears from that post that Japanese law and culture are incompatible with the Convention, and it is difficult to see the Convention operating as it should in Japan. It is suggested that Japan only signed under pressure from the USA, and that only continued pressure will ensure at least partial compliance.

Saturday, January 25, 2014

Thursday, January 23, 2014

Thursday Review: Not fit for purpose


It was pleasing to see that the Ministry of Justice’s proposals to increase court fees have been condemned as "not fit for purpose" by an internal government review. I'm not honestly sure as to the implications of this, and whether it is likely to lead to any back-tracking by Mr Grayling and his minions. However, even if does not, it certainly gives ammunition to his opponents, as mentioned in this article in The Guardian.

I have probably spent too much time this week reading the Daily Mail, but a story today caught my eye. It is bad enough being harassed online by your own former clients when they are unhappy with your services (as happened to the victims of a certain former website), but when fathers' rights activist Tim Line was unhappy about losing contact with his children he decided to harass his ex-wife's solicitor. Needless to say, the court took a pretty dim view of this, and Mr Line was the recipient of a four week suspended sentence, a restraining order and a £480 costs order.

I will finish with an exchange that occurred earlier this week on Twitter between two family lawyers of whom you may have heard previously. It began with a reference to Sir Paul Coleridge's Marriage Foundation's recommendation to Iain Duncan Smith that the state should encourage cohabitants to marry, a story I mentioned here in my Tuesday Review. We then got this excellent suggestion:
To which came this equally excellent reply:
Quite.

Enjoy the rest of your Thursday.

Wednesday, January 22, 2014

Re Ramet: Contemnor not to be punished twice for the same conduct

A quick note about Ramet, Re application for the committal to prison [2014] EWHC 56 (Fam), handed down by the President today.

The case concerned a long-running contact dispute. A hearing took place at the Southend County Court on the 10th of October last. As the judge was handing down her judgment the father attacked the mother, and then also the court clerk who came to her aid. He subsequently pleaded guilty to offences of assault occasioning actual bodily harm (the attack on the mother) and common assault (the attack on the court clerk), and was sentenced to 20 months' imprisonment for the assault occasioning actual bodily harm and four months concurrent for the common assault.

The President had to deal with the issue of sentencing the father for contempt (the father having admitted the two complaints in the summons, i.e. the attacks on the mother and court clerk). He found that the conduct complained of in the contempt summons was the same conduct as had been the subject of the criminal proceedings. The father could not be punished twice for the same conduct, and therefore the President did not impose any additional sentence.

The President's judgment is also notable for a couple of other things:

Firstly, he expressed his exasperation at the lack of progress in improving the way that children disputes are dealt with since his judgment in Re D (Intractable Contact Dispute: Publicity) [2004] EWHC 727 (Fam):
"How much has changed? A coruscating judgment by McFarlane LJ in September last year, Re A (A Child) [2013] EWCA Civ 1104, would suggest to the pessimist the answer "not much" and even to the optimist "not enough". Something must be done. A recent report by a Working Group chaired by Cobb J, Report to the President of the Family Division of the Private Law Working Group, is at present the subject of consultation and urgent consideration. With its proposal for a Child Arrangements Programme to replace the current Private Law Programme, it maps out a radically different approach. I am determined to implement the necessary reforms as soon as possible this year."
Secondly, he expressed his concerns about the adequacy of the statutory penalties available under the County Courts Act 1984 and he invited the Family Procedure Rules Committee "to consider whether there is some way in which, compatibly with the provisions of the Crime and Courts Act 2013, District Judges, Circuit Judges and Recorders can be given powers more extensive than those currently available to them in these cases."

Sometimes reading Twitter it seems like this...

Tuesday, January 21, 2014

Tuesday Review: Old news


The Daily Mail today gleefully reports that the Marriage Foundation has recommended to Iain Duncan Smith that "a drive to persuade couples to marry rather than simply live together would help combat high break-up rates among cohabitees". Of course, this is lapped up by Mail readers, who comment with such gems as: "Sort the divorce laws out if you want more marriage". It's a tired old mantra, repeated at every opportunity by the Foundation, always missing the point that the 'type' of couples who marry are the type who are more likely to stay together. The act of signing a marriage certificate will not make a jot of difference to the longevity of a relationship.

Also something that we've been aware of for some months, but packaged by Lucy Reed in a rather frightening format, is the drop in representation in s.8 cases. Look at the graph for cases where both parties have a solicitor - tending towards zero. Who would be a judge?

Lastly, back to the Daily Fail Mail for the news that sales of do-it-yourself DNA testing kits are soaring, something else we already knew. I'm not going to say anything about the legality (or morality) of carrying out a DNA test without the consent of one of the 'parties', but I did rather like the (currently, at least) top-rated reader's comment:
"only way they find the real father with 4 guys in a night"
Have a good Tuesday.

Monday, January 20, 2014

250th Edition of the Family Lore Focus Newsletter


Not content with entering my ninth year of blogging, another milestone has been passed today, with the publication of the 250th edition of the Family Lore Focus Newsletter.

For those who don't know, the Newsletter is a free weekly email sent to subscribers, containing links to all the top family law news stories, cases, legislation, articles and blog posts that were reported on Family Lore Focus that week. The links come from across the web (unlike other similar emails, that only contain links to one site), and are all free to view.

You can subscribe to the Newsletter here.

Friday, January 17, 2014

The modern plague


Divorce is the 'modern plague', says MP Edward Leigh - Grimsby Telegraph, 17th January 2014

(With apologies to Monty Python.)

Friday Review: A couple of things...


The avalanche of new guidance emanating from the chambers of our esteemed president continues apace. In an effort to counter the charge that the family court is 'a system of secret and unaccountable justice', he has issued guidance aimed at increasing the number of published judgments, both of the family courts and the Court of Protection. I suppose this may help satisfy some of the more reasonable detractors of the family justice system, but I doubt that it will do much to assuage the hard-liners of the 'secret family courts' brigade. Anyway, the good news, as set out in paragraph seven of this guidance, is that there will be yet more guidance to follow. I can't wait.

I was pleased to read on the BBC today the Director of Community Services at Coventry City Council Brian Walsh state that he could never give assurances that the Daniel Pelka case could never happen again. Why am I pleased? Because I am fed up with the constant stream of platitudes from politicians and the media along the lines of: "we must ensure that this never happens again!" That may sound impressive to the average voter or reader, but it is, of course, complete nonsense. It is impossible to prevent these things ever happening again. As Mr Walsh says, social care is not a science - all we can do is continually try to improve the system. To give the public false expectations of perfection is to perpetuate ignorance, which will only lead to further damaging furores when the next child deaths inevitably occur.

Have a good weekend.

Thursday, January 16, 2014

Quotations from history, #2


President issues guidance aimed at publishing more judgments, to counter the charge that the family court is a system of secret and unaccountable justice - 16th January 2014.

Wednesday, January 15, 2014

Supreme Court judgment in In the matter of LC (Children)

Supreme Court hands down judgment in In the matter of LC (Children)

Supreme Court - Image: jay galvin

The Supreme Court has today handed down judgment in In the matter of LC (Children).

The Issues
(1) Whether, and if so to what extent, children’s views are relevant in the evaluation of their habitual residence, and
(2) When should a court join a subject child as a party to Hague Convention proceedings.

The Facts
The case concerns the alleged wrongful retention of four children: T aged 13, L aged 10, A aged 8 and N aged 4 (“the Children”). Their father is British, living in England. Their mother is Spanish, now living in Spain. The parent’s relationship ended in early 2012, soon after which mother took the Children from this jurisdiction to Spain to start a new life, without father’s consent. The Children came back to England for a holiday at Christmas 2012 and did not return to Spain. Mother applied for the return of the Children to Spain, pursuant to the Hague Convention 1980. Father resisted the application. The High Court ordered the Children be returned to Spain. Father and T, L & A appealed to the Court of Appeal. The Court of Appeal allowed the appeal on a single ground, finding that T, the eldest child, should stay in England and remitted back to the High Court the question whether it would be intolerable under Article 13b of the Hague convention to separate L, A and N from T. The trial judge’s decisions on habitual residence and in respect of L and A’s non-objections were upheld at the Court of Appeal. Father now seeks permission to appeal in respect of the Court of Appeal’s decision on habitual residence and child’s objections. T appeals on habitual residence and on the point that T should have been separately represented at the trial before Cobb J.

The Decision
The Supreme Court unanimously found that T’s assertions about her state of mind during her residence in Spain in 2012 were relevant to a determination whether her residence there was habitual. Accordingly, the court set aside the conclusion that T was habitually resident in Spain on 5 January 2013 and remitted the issue to the High Court for fresh consideration. The Supreme Court also set aside the finding of habitual residence in respect of the three younger children so that the issue can be reconsidered in relation to all four children.

The Supreme Court unanimously also concluded that T should have been granted party status and that the Court of Appeal should have allowed her appeal against the judge’s refusal of it.

You can read a press summary of the judgment here, the full judgment here (PDF - HTML version here) and the Court of Appeal judgment here.

Wednesday Review: Nasty


As I asked on Twitter, is there any limit to Tory nastinesss? Not content with attacking immigrants, benefit claimants and various others who do not fit in with their warped ideals, Tory MPs have now turned their bile upon couples who separate or divorce, according to this story in The Telegraph. Sir James Gerald Douglas Howarth (known as Gerald Howarth), member of Parliament for Aldershot, advises us that "for the sake of the country" we should be more “judgemental” and criticise parents who split up. Because, of course, they only do it so that they can screw some money out of the hardworking taxpayer.

Moving swiftly on from that, the Family Rights Group has warned that cuts to local domestic abuse services, compounded by welfare reforms, are putting families at risk of being split up by having their children put into care. They say that their data suggests that, rather than providing mothers who are victims of domestic violence with specialist help, the state is preferring to remove their children from them. Another consequence of this Government's policies?

Someone who I'm sure would be interested in that is the ubiquitous John Hemming MP, who is again in the news, although I have only found this particular story in the Press Gazette. Hemming makes what appears to me the reasonable point that the listing system in the family courts and the Court of Protection prevents journalists from identifying cases of significant public interest, unless they are made aware of the nature of a hearing by one of the parties. He suggests that instead of being listed by number or letter, cases be listed by topic. An interesting idea.

Tuesday, January 14, 2014

Internet Newsletter for Lawyers January/February 2014


The latest issue of the Internet Newsletter for Lawyers is now published.

In this issue
  • Social media – Boyd Butler demystifies Google Plus
  • Privacy – Eduardo Ustaran discusses how we can best balance the need for privacy against data exploitation
  • Conveyancing – Nicholas Fluck, President of the Law Society, describes the development of the online Conveyancing Portal
  • Lergal services – Who should you be afraid of in 2014? Delia Venables and David Gilroy assess what's changed
  • Marketing – Simon Goodlad of Websites for Law Firms on why your website should be developed as a marketing tool
  • Social media – Claire Cavanagh at EJ Legal shows how LinkedIn can be used to best effect for law job seekers
  • Languages – Susan Isaacs describes the best online resources lawyers can use to learn foreign languages

Online extras
  • Technology – Charles Christian on what Microsoft means in a post-Windows world

Access the Newsletter online at http://www.infolaw.co.uk/newsletter/.

The RSS feed of latest articles is at http://www.infolaw.co.uk/newsletter/feed/.

S v S: Guidance on applications to give effect to arbitral awards

The President has given guidance about the proper approach of the court to applications for the approval of consent orders which have been lodged with the court following, and intended to give effect to, arbitral awards, in S v S [2014] EWHC 7 (Fam).

In his judgment the President set out a summary of the IFLA Arbitration Scheme, the facts of the case and the legal context of such applications. I won't go into those here, instead concentrating upon what he had to say about the approach that the courts should take in cases where there has been an arbitration award under the IFLA Scheme or something similar.

He began by pointing out:
" Two situations need to be considered: one where the parties come before the court seeking a consent order; the other where one or other party is seeking to resile from the arbitrator's award. In the present case I am, strictly speaking, concerned only with the first, but some provisional comments on the other may be helpful and not out of place."
The starting-point in every case was, in the words of Sir Peter Singer, that:
"The autonomous decision of the parties to submit to arbitration should be seen as a 'magnetic factor' akin to the pre-nuptial agreement in Crossley v Crossley".
In other words:
"In the absence of some very compelling countervailing factor(s), the arbitral award should be determinative of the order the court makes."
Further:
"There is no conceptual difference between the parties making an agreement and agreeing to give an arbitrator the power to make the decision for them."
He said that it was worth remembering his own words (in L v L) concerning the function of the judge when invited to make a consent order in a financial remedy case:
"...the judge is not a rubber stamp. He is entitled but is not obliged to play the detective. He is a watchdog, but he is not a bloodhound or a ferret."
He then set out the essential principles:
"Where the consent order which the judge is being asked to approve is founded on an arbitral award under the IFLA Scheme or something similar (and the judge will, of course, need to check that the order does indeed give effect to the arbitral award and is workable) the judge's role will be simple. The judge will not need to play the detective unless something leaps off the page to indicate that something has gone so seriously wrong in the arbitral process as fundamentally to vitiate the arbitral award. Although recognising that the judge is not a rubber stamp, the combination of (a) the fact that the parties have agreed to be bound by the arbitral award, (b) the fact of the arbitral award (which the judge will of course be able to study) and (c) the fact that the parties are putting the matter before the court by consent, means that it can only be in the rarest of cases that it will be appropriate for the judge to do other than approve the order. With a process as sophisticated as that embodied in the IFLA Scheme it is difficult to contemplate such a case."
Applying those principles he approved the consent order in the present case.

He added that he could "see no reason why the streamlined process applied by Coleridge J in S v P (Settlement by Collaborative Law Process) [2008] 2 FLR 2040 in the context of a consent order which was the product of the collaborative law process should not be made similarly available in cases where the consent order is the product of an arbitral award under the IFLA Scheme or something similar." The headnote to that case reads:
“This application for approval of draft consent orders could be dealt with [by a High Court judge] in the ‘urgent without notice’ applications list, in order to shortcut the normal rather lengthier process of lodging consent orders … and waiting for them to be approved and sent back … The court would usually be prepared to entertain applications of this kind in the without notice applications list before the applications judge of the day on short notice. A full day’s notice must be given to the clerk of the High Court judge in front of whom it was proposed to list the case; such notice could be given by telephone. The clerk of the rules should be informed that this was taking place. Use of the shortcut process was always subject to the consent of the urgent application judge. However, provided every aspect of documentation was agreed, the hearing was not expected to last more than 10 minutes, and the documentation was lodged with the judge the night before the hearing, this process had been approved by the President”.
He added two points relating to procedure:

(1) In every case the parties should lodge with the court both the agreed submission to arbitration (in the case of an arbitration in accordance with the IFLA Scheme, the completed Form ARB1) and the arbitrator's award.

(2) The order should contain recitals to the following effect, suitably adapted to meet the circumstances:
"The documents lodged in relation to this application include the parties' arbitration agreement (Form ARB1), their Form(s) D81, a copy of the arbitrator's award, and a draft of the order which the court is requested to make.

By their Form ARB1 the parties agreed to refer to arbitration the issues described in it which encompass some or all of the financial remedies for which applications are pending in this court; and the parties have invited the court to make an order in agreed terms which reflects the arbitrator's award."
As to the situation where a party seeks to resile from the arbitral award:
"the other party's remedy is to apply to the court using the 'notice to show cause' procedure. The court will no doubt adopt an appropriately robust approach, both to the procedure it adopts in dealing with such a challenge and to the test it applies in deciding the outcome. In accordance with the reasoning in cases such as Xydhias v Xydhias, the parties will almost invariably forfeit the right to anything other than a most abbreviated hearing; only in highly exceptional circumstances is the court likely to permit anything more than a very abbreviated hearing.

"Where the attempt to resile is plainly lacking in merit the court may take the view that the appropriate remedy is to proceed without more ado summarily to make an order reflecting the award and, if needs be, providing for its enforcement. Even if there is a need for a somewhat more elaborate hearing, the court will be appropriately robust in defining the issues which are properly in dispute and confining the parties to a hearing which is short and focused. In most such cases the focus is likely to be on whether the party seeking to resile is able to make good one of the limited grounds of challenge or appeal permitted by the Arbitration Act 1996. If they can, then so be it. If on the other hand they can not, then it may well be that the court will again feel able to proceed without more to make an order reflecting the award and, if needs be, providing for its enforcement."

Tuesday Review: Crass


I suppose I should mention John Hemming's remarkable advice to parents suspected of child abuse to flee the country, rather than face justice in the family courts. I am a little reluctant to do so, as it does appear that it may be little more than a publicity stunt, rather than serious advice. Notwithstanding this, others have responded vociferously. Perhaps my favourite such response came from Cathy Ashley, Chief Executive of Family Rights Group who said in  a press release: "This is crass, ignorant and potentially dangerous advice. It could seriously backfire on any parent who follows it. It could put a child at risk in serious danger." I don't think I could better that.

Elsewhere, mediation is in the news with the Law Society Gazette revealing that: "Ministry of Justice figures show that since private family cases were largely taken out of scope for legal aid, the take-up of public funding for advice to support mediation has been non-existent in many parts of the country." The figures must make pretty sobering reading for our new Justice Minister:
"Of 82,432 family claims made in England and Wales between April and October 2013, just 20 included help with mediation claims. By contrast, in the preceding 12 months lawyers made 62,390 ‘funding code’ referrals to publicly funded mediation."
Ouch. So much for the Government's policy of using mediation to patch up the mess left by the abolition of legal aid. Also in the Gazette, Eduardo Reyes likens the policy to an airplane with failed engines, heading towards terra firma at alarming speed. Whatever your views on mediation, it does seem that disaster will only be averted by some serious piloting skills or, better still, a complete change of direction. Of course, there are already hundreds of victims, even before the crash has occurred - they are having to fend for themselves in the family courts.

On the subject of disaster, I shall finish with this piece of excellent advice, found on Twitter:

Monday, January 13, 2014

Cellmark responds to legal aid changes


In the past 12 months there have been some significant changes to Legal Aid funding. The Government has stated that the expenditure was too high and cuts had to be made.

Initial changes were made in April 2013 and following a further consultation process in the summer of 2013 new guidance has been issued leading to action being taken in 2 key areas:
1. The range of cases that Legal Aid can be claimed for has been reduced:
  • In family law Legal Aid is not available for matters that “do not justify the use of public funds”.
  • Visa applications for relatives to visit/reside with relatives already resident in the UK are now excluded.
2. A reduction of 20% in the fees payable to experts (e.g. Cellmark) for the same work.
The new guidance, which was published in November 2013 and came into effect for cases registered from December 2nd last year, sets a lower level of funding for DNA testing.


Pre 2/12/13
Post 2/12/13
DNA – testing of sample*
£315 per test
£252 per test
DNA – preparation of report
£90
£72

*The guidance states that a test comprises of father and child (plus mother if required). For each additional child the limit of funding is increased by £133. If there are a number of alleged fathers, each father and child/children tested would constitute a separate test.

Cellmark will (from January 1st 2014) reduce its prices for standard DNA relationship testing to comply with the new guidance. Our new price will be £324 ex VAT.

Included in OUR price will be the following:
  • All sampling kits and the cost of getting them to UK sampling locations
  • Pre-paid return envelopes to send the samples to our laboratory
  • The cost of testing the samples once they have been received at our laboratory
  • The cost of producing and sending the final test report to the “customer”
  • Our standard turn around time of 3 - 5 days
  • Our FREE advice service for the duration of the case – before and after the final test report – accessible via email, FreePhone 0800 036 2522, and our web Chat service
Our commitment:
The Government’s own impact assessment on the 20% reduction in the level of fees that can be claimed under Legal Aid highlighted several risks:
  • Lower income might cause a reduction in the number of experts available
  • Numbers of public law family cases will continue to rise
  • Lower fees might mean experts deliver a lower quality service
As the UK’s most recommended DNA testing service and the world’s first private DNA fingerprinting company we would like to take this opportunity to restate our commitment to continuing to provide the same, industry leading, quality of testing, analysis and customer service that we have since June 1987.

Are you eligible for Legal Aid?
The Legal Aid Agency has produced a range of information to assist solicitors and individuals in establishing whether their case is eligible for Legal Aid funding and this can be accessed via the following web page - http://legal-aid-checker.justice.gov.uk/ we recommend you use this as a starting point before embarking on the complex process of applying for legal aid.

If you can’t get Legal Aid you may be able to get free advice from one of the following:
You can also pay for advice from a local legal advisor or solicitor – a number of firms are responding to the changes by offering fixed price services.

Quotations from history


Parents should 'go abroad rather than face family courts' says John Hemming - BBC News, 13th January 2014.

Friday, January 10, 2014

Friday Review: Bored with surveys


Another week, another three surveys...

I know I've said it before, but the whole notion of commissioning a survey to get a bit of publicity is really getting tired.

I've already mentioned the Relate survey on divorce, in my Wednesday Review. Hot on its heels come not one but two more surveys. The first came from the Dogs Trust and told us that a fifth of separating couples found deciding who gets the dog to be “as stressful” as who should care for the children. The second came from Co-op Legal Services and told us, inter alia, that only one in four cohabiting couples intend to marry.

Wow, I feel so much better informed. In fact, I will celebrate with a short video, which seems to say it all:



Perhaps I should take a break for a couple of days...

Wednesday, January 08, 2014

Our new Justice Minister gets the idea...

Wednesday Review: A mantra, a plea and... another survey


I didn't intend these review posts to be a daily thing, but that's the way it's turning out at the moment...

New Minister, old news
New Justice Minister Simon Hughes has wasted no time plugging mediation, as I predicted (albeit even earlier than my prediction). In a press release which describes him as the 'Family Justice Minister' the Ministry of Justice provide a reminder, timed to coincide with the January divorce upsurge (if there is such a thing), of the 'compulsory MIAM' provision of the Children and Families Bill (see, currently, s.10). There is, of course, nothing new about this, or about the tired old mantra that Hughes has inherited from his predecessor: "Mediation works and we are committed to making sure that more people make use of it, rather than go through the confrontational and stressful experience of going to court." He says.

Mr Justice Holman
An interesting story in Family Law Week reports that in a public judgment "given to highlight the 'chronic' problem of legal aid in cases of alleged international child abduction" Mr Justice Holman has called for changes to legal aid in child abduction cases, to enable the courts to keep to the 6 weeks timetable required by Article 11 (3) Brussels II Revised. He suggests that in cases where a Cafcass report is ordered, an initial grant of public funding should be made to the respondent and then reviewed upon receipt of the report. Seems very sensible, but whether the Legal Aid Agency will play ball is another matter. In this particular case the mother, a Lithuanian national with little English and no knowledge of the relevant law, was refused legal aid before the Cafcass report (which arguably assisted her case) was received, leaving her to put forward her case with no legal assistance. An adjournment was granted to enable her to appeal to the LAA, but this would take the case well beyond the 6 weeks, the court having already breached that limit in order to allow time for the mother's original legal aid application. A written version of the judgment is due to be published in mid-January.

Lastly, the latest in the never-ending stream of divorce-related surveys comes from counselling charity Relate. The headline this time is that there is no such thing as a "good" divorce, according to six out of ten parents who have been through a family break-up, with more than half of those polled admitting that, despite their best efforts, the experience had had a negative effect on their children. Once again, whether this result adds anything, or anything useful, to the sum of human knowledge, I'm not sure.

Tuesday, January 07, 2014

Tuesday Review: Making a quick buck


A couple of things I spotted in the last twenty-four hours:

John Hyde in the Law Society Gazette complains about family lawyers gleefully filling the media with tales of the surge in January divorces. He has a point, although he rightly directs some of the blame at the media, who are desperate for a story at this time of year. The lawyers, of course, are only too happy to oblige:
"Getting your name out into the public domain is an expensive business, so a little free advertising dressed up as a press release is good marketing."
This is a lesson that the profession seems to have learned only too well - hardly a week seems to go by without me coming across some piece of thinly-veiled advertising from a law firm passing itself off as a press release. Anyway, back to the story, Mr Hyde fears that by jumping on the 'Divorce-Day' bandwagon lawyers are re-enforcing the public image of the profession "as blood-sucking leeches, revelling in human misery and plumbing the depths of family breakdown to make a quick buck." Food for thought before your next engagement with the media.

Also in the legal press Legal Futures reports upon what seems to be another unintended consequence of the abolition of legal aid: the growth of ‘professional’ McKenzie Friends, who charge litigants in person for their services. The issue is being investigated by the Legal Services Consumer Panel, with suggested policy responses including outlawing charging a fee for McKenzie Friend services, creating a blacklist or developing a self-regulatory solution. Meanwhile many LiPs will run the gauntlet of  paying for unregulated legal services - particularly ironic when one considers the level of regulation that the legal profession is subjected to these days.

Monday, January 06, 2014

Monday Review: For those who want to listen


Notable things of late:

Lucy Reed does a complete hatchet job on the latest outpouring from Christopher Booker at The Telegraph in this post on Pink Tape. Whilst I agree with all she says, I wonder whether it is an exercise in futility, as it is unlikely to make the slightest bit of difference to the way Mr Booker and his ilk report in future, and it may even encourage them. After all, any publicity is good publicity, isn't it?

It's taken rather longer than expected, but the full report of the University of Exeter Law School upon their research into the enforcement of contact orders (as mentioned in this post last July) has been published (not sure about the chess reference on the cover, left, - after all, you can't fight over your own pawns). The 'headline' finding, as mentioned in the briefing last July, is that adequate punitive sanctions are already in place to enforce contact orders. As I said in this post, I suspect that this finding will not come as music to the ears of some, particularly fathers' rights groups. Here is an extract from the conclusion:
"...what emerged was that the public perception of the nature of enforcement cases is inaccurate. Implacably hostile mothers ... do exist and do unreasonably frustrate contact and defy the court. But their numbers are very small. Systematic analysis of a nationally representative sample of enforcement applications revealed that most enforcement cases are not about an implacably hostile parent but rather troubled or conflicted sets of parents,significant safety issues and children making reasonable and understandable decisions to limit contact."
The researchers concluded:
"The courts are ... acting appropriately in the great majority of cases by focusing on facilitating co-parenting, implementing protective measures or heeding the nuanced views of older children. In only a handful of cases were the courts insufficiently robust in handling implacably hostile parents..."
Accordingly, they recommend that policy should "refocus somewhat away from the few implacably hostile cases requiring punitive sanctions and towards finding sustainable, safe and child-centred solutions to the full range of enforcement cases."

I shall finish with this example of our caring society (could be a good place for lawyers to advertise their probate services?):

Saturday, January 04, 2014

Saturday Review: Something new, something old


Notable things of late:

Anyone foolish enough to be a regular reader of this blog will find that some things (in fact, most things) will be changing around here. No, I'm not going to use a new template (although that may come later, if I should feel so inspired), but the regular features will for the most part be going, to be replaced by these 'Review' posts looking at notable recent developments, which will appear whenever I see fit, rather than on a particular day each week. So, without further ado:

I will begin with an interesting development in France, where it is reported that a plan to allow divorces by mutual consent to proceed without a judge is under consideration. Such divorces would be dealt with by clerical staff, leaving judges to deal with more complex cases. This sounds very similar to the 'divorce by administrative process' proposal of the Family Justice Review (see paragraph 4.162 et seq), and is surely the way of the future.

There seems to have been some confusion as to exactly which day is 'Divorce Day'. Some said it was last Thursday, the first day back at work after the Christmas/New Year break. Some said it was Friday. Others say it is this Monday, and I've even seen mention of a 'Divorce Week' (!). I really think this important issue should be resolved. Perhaps our ubiquitous President should deal with this, rather than such trivia as the Family Court, 26 weeks, transparency etc. etc.?

I shall finish this brief first review post with a couple of slightly risqué oldies but goodies:

First this from Instagram (I think the quote was originally accredited to Robin Williams):


And secondly this from Twitter:
Enjoy the rest of your Saturday!

Friday, January 03, 2014

Friday Review: Triumph and... not much else


Notable things this week:

Well, there weren't many actually, but at least the hideous nightmare of Xmas and the New Year is over, so it is no longer necessary to pretend you are having a good time, when patently you are not.

Clearly, the biggest news in family law is the re-vamping of Lucy Reed's Pink Tape blog. It now has a 'cleaner' template, a more 'modern' look and is easier to read. Alas, the 'blogroll' is one of the victims of the change, but I suppose that has had its day, harking back as it does to the long-lost era of the 'community of bloggers', all helping one another up the Google ladder. I'm also not entirely happy with the way it defaults to a mobile version on my iPad (I prefer to look at 'full' sites), but that's just me being a dinosaur. Overall though, Pink Tape is now triumph of style and substance. Add it to your blogroll if you still have one.

On the subject of top blogs, Adam Wagner at the UK Human Rights Blog put The Times on the naughty step for (remarkably) not being aware of Article 12 of the ECHR - the right to marry. I suppose this is what happens when you hand over control to sub-editors, but even so you would have thought that The Times would get such a basic thing right.

Another newspaper, The Observer, informed us that "MPs from all parties are backing a tough US-style law that would make domestic abuse a specific offence carrying a sentence of up to 14 years in prison." I'm always a bit dubious about calls for more laws, but if it succeeds in reducing domestic violence as its supporters suggest it will, then that must be a good thing, mustn't it?

Meanwhile, the Observer's sister newspaper The Guardian reminded us that the courts are already spending considerable time and resources dealing with domestic violence, as it reported the annual spike in cases over Xmas. So much for the season of goodwill.

And then there is John Hemming MP. The latest episode in his, ahem, interesting career involves him being suspended from the Mumsnet forums. The reason, apparently, is that he broke their guidelines on identifying anonymous posters by naminig a certain barrister with whom he has had "a few disagreements in the past which are not worth going into". Hemming apparently raised the old "I didn't read the rules" defence, which always goes down well in courts of law. Hemming also admitted drinking whilst using the forums. but claims to have been "sober without a hangover" when he wrote the post that caused him to be suspended.

I will end with my favourite tweet of the last week (or so):